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Detainer Litigation and Discovery: ICE Records Discoverable

Innovation Law Lab, together with attorneys from Oregon Law Center, recently obtained a victory for the taxpayers in Wasco County who seek to an end of the ICE contract and other immigration enforcement activity prohibited by state law in their four-county jail. The jail, NORCOR, objected for months to delivering records demonstrating local law enforcement assistance with federal immigration enforcement. Citing 8 C.F.R. § 236.6, NORCOR made a blanket refusal to turn over documents, sought to claw back those it had already turned over, and refused to answer questions in depositions about the material.

The regulation, 8 C.F.R. § 236.6, prohibits public disclosure of the names and other identifying information of individuals held in detention by ICE. Plaintiffs contend that there is a significant difference between public disclosure, such a FOIA request or similar public records request, and documents sought in a lawsuit. The Wasco County Court agreed and ordered NORCOR to produce the documents, concluding “[t[hat regulation does not apply to requests for discovery in litigation.”

The Court also confirmed that where a local law enforcement agency or other party holds documents sent to it by a government agency, the Touhy regulations do not apply.  The Court reasoned that because NORCOR “is not a federal agency or a current or former federal employee,” the Plaintiffs may obtain documents directly from NORCOR.

Innovation Law Lab applauds our clients in demanding transparency and accountability at NORCOR, and hopes this ruling assists other jurisdictions in understanding the correct scope of 8 C.F.R. § 236.6.

A copy of the ruling can be found here.

Compassion, Immigration, and the Rule of Law

Photo: Ethan Chua, our summer intern, transfers knowledge to Amelia Bellows, our fall intern.

A few weeks before I began my internship at the Innovation Law Lab, a nonprofit based in Oregon that provides legal services to immigrants and refugees, I was both nervous and skeptical about beginning the work. Nervous, because I was an undergraduate majoring in anthropology who knew next to nothing about refugee law; skeptical, because, in the few years I’d spent in the United States, I’d learned how the rule of law is often employed as a smokescreen for institutionalized racism – from Nixon’s targeting of impoverished communities of color in his war on drugs, to the systemic brutality black men face at the hands of police today.

But the day I began my internship, I watched as the Innovation Law Lab scored a major legal victory in its suit against the Department of Homeland Security, winning a temporary restraining order that granted it access to the federal prison in Oregon where over a hundred immigrants were being detained. That day, I saw the rule of law being applied to ensure the dignity and security of over a hundred men who had been treated by the current administration as less than human, incarcerated without trial or conviction in blatant violation of their constitutional rights. And after that day, I worked with the Law Lab and saw several of those men through from their know your rights training, to their credible fear interviews (where their eligibility for asylum is determined), to their eventual release.

My internship is coming to a close, and I’ll admit I leave with a continued ambivalence towards the institution of the law in the United States. Its founding principles, couched in a language of equal rights and humanism, also effectively excluded indigenous and black Americans from its protections; nevertheless, those same principles have been rearticulated by activists of color to actually stand for the defense and dignity of all human beings. And with respect to immigration – on the one hand, the continued jurisdiction the executive branch has over immigration courts in the US allows decisions such as who qualifies for asylum to be swayed by the whims of whichever administration has power; on the other hand, the very principles of international refugee law were a powerful response to the atrocities of the Holocaust, holding nation-states accountable to ideals larger than the span of their individual territories.

But I’ve realized, too, that I started this internship missing a key point – forgetting that, as indomitable and opaque institutions such as the justice system may seem, they are ultimately forged from social relationships, and thus within our power to change. I think of Marx’s concept of alienation, where relationships between people are reinscribed as relationships between things, and where we subsequently forget the ways we are involved in the systems we inhabit. It’s this same alienation which prevented me from imagining the rule of law used as a tool for compassion – as a way to guarantee the safety of immigrants and the rights of refugees.

I’m frustrated, now, when headlines refer to the massive movement of migrants in response to persecution and strife as a “crisis” with murky origins – frustrated at the way it renders mass swathes of human beings into a problem to be solved or a security issue to be dealt with. And with the turns in the United States towards nativism and jingoism in response to the continuing arrival of refugees, I see a profound alienation at work. Because it’s not about the dilution of an abstract national identity or the supposed influx of a wave of criminals – no, how we respond to those who arrive at the border seeking safety and refuge is not a question of security, but a question of humanity.

So I guess, in other ways, immigration is a crisis – but a crisis of compassion. It’s a challenge to us to imagine a world where one’s fundamental rights are not dictated by the borders of one’s nation-state, the language on one’s passport, or the color of one’s skin. And it’s a challenge to the way we envision the institutions we hold dear – do we continue to employ the rule of law as a thinly veiled instrument of racism and sexism (as in Jeff Sessions’s decision to make it more difficult for Central and South Americans fleeing domestic violence to seek asylum), or do we fight for its just application (as in current litigation to have a private prison in Oregon stop its detainment of refugees) and for its empathetic reform?

Moving forward, too, we will have to confront the inadequacies of international refugee law, even as its just application has safeguarded millions from persecution. Can we, for example, recognize the ways in which economic disparities are also forms of global violence – say, expanding the current call to reunite families separated at the border to recognize the trauma faced by families also torn apart in places as varied as Nicaragua and the Philippines due to the demands of a remittance-based economy? Can we begin to prepare – with compassion – for the mass migrations that will result due to extreme changes in climate throughout the globe?

Perhaps much of this reform seems beyond imagining. Meaningful change in immigration law has stalled consistently in the United States due to partisanship and political polarization. But to say it is impossible is to forget that we are both participants in and drivers of social institutions; it is to resign ourselves to the way things are; it is to refuse to dream.

And in the wake of an increasing cynicism at the failure of globalization to deliver on its supposed promises of equity and prosperity; in the return to a rhetoric of racist nationalism among many countries in the West; international refugee law still stands as a powerful testament to our ability to imagine a humanity larger than ourselves and our borders. But we can do better, still – for today’s refugees and for the refugees of the future – so dream we must.

This blog post was written by Ethan Chua. Ethan was a summer intern at the Innovation Law Lab and is a junior at Stanford University studying anthropology. He is a published comic book writer and spoken word poet. This post was originally published on the Stanford Urban Studies & Urban Summer Fellowship blog.

Sheridan: When a Community Responds

by Stephen W Manning, Executive Director at the Innovation Law Lab and Mat Dos Santos, Legal Director at the ACLU of Oregon

In late May 2018, the Trump Administration imprisoned Karandeep Singh, and hundreds other men like him, because he had fled to the United States to seek asylum. The administration’s goal, as President Donald Trump stated, was to “immediately, with no Judges or Court Cases bring them back from where they came.”

Mass imprisonment and rapid deportation are supposed to be the new norm because, according to the president, immigrants “are animals.” The Trump Administration is actualizing its immoral and unlawful plan to deport immigrant communities of color en masse. Immigrants with legitmate asylum claims are being deported faster and in larger numbers than we’ve seen before.

Like more than 120 other asylum seekers, the administration locked Karandeep in a federal prison in Sheridan, Oregon, denied him access to lawyers – and therefore the law – and then was going to immediately deport him in spite of his legitimate claim to asylum. That was supposed to be it.

But, exactly 90 days after he was thrown in prison, Karandeep was freed from his cell in Sheridan to fight his asylum claim outside the electrified confinement of immigrant detention.

How did Karandeep get out of Sheridan?

Oregonians came together to provide necessary support for these asylum seekers in the best ways we each know how. We came together in the courts, on the streets, in the headlines, in our community, fighting for these men on both sides of Sheridan’s walls.

Grassroots organizations working within the Rights Architecture in Oregon deployed their best strategies, with their best hearts, and their clearest thinking to collectively defend Karandeep and all the men immorally imprisoned in Sheridan in order to build sustainable, inclusionary pathways for Oregon and everywhere.

Unidos Bridging Community, the Interfaith Movement for Immigrant Justice (IMIrJ), the Rural Organizing Project (ROP) and others built solidarity outside the detention center with everyone inside the detention center through vigils, marches, and and public manifestations of connection, support, and hope. These actions kept what was happening in Sheridan in the headlines and in public consciousness, letting the men know the community supports them and letting the government know that their actions don’t align with Oregon’s values.

Asian Pacific American Network of Oregon (APANO), Causa, and others activated a massive network of volunteers to engage in the challenging and vital work of defending everyone in detention so that no one was forgotten.

The ACLU of Oregon – in collaboration with attorneys from Stoll Berne – as well as the Federal Public Defender of Oregon broke open the Trump Administration’s attempt to isolate Karandeep and others from the law by fighting the government in federal court. The successful lawsuit finally paved the way for the asylum seekers to have access to attorneys from the Innovation Law Lab.

APANO, ROP, Unidos, and the newly-formed ICE out of Sheridan group established a special post-detention respite network to provide a welcoming einvironment and transportation from the doors of the detention center to a safe, sheltered, dignified space, allowing the men to recover from detention and build plans for onward travel to their family and sponsors. This crucial support network engaged several religious organizations, like the Dasmesh Darbar Sikh Temple to St. Michael & All Angels Episcopal Church, and dozens of community members.

And Oregon Ready, a statewide coalition of community organizations, collectivized attention on developing a lasting policy resolution to end asylum-seeker incarceration at federal prisons.

Karandeep’s journey is only partially complete. And many more immigrants of color are still confined within Sheridan and other facilites around the country. Yet when Karandeep walked out of Sheridan on August 21, he won an important victory in the long journey to protect the rule of law.

The simple promise that ended mass deportation in Sheridan

A note from Sheridan: “You were the ray of hope that entered the window of my cell. May God bless you and give you health. We care for your very much.”

Dear friends,

The Trump Administration hatched a plan to deport as many immigrants as fast as they could. Their plan involves building the apparatus of mass incarceration, creating vast shadows of stigma over the immigrant community, and eliminating courts. When the administration decided to incarcerate more than 120 asylum-seeking men in the Sheridan federal prison, they were implementing a plan to stigmatize, incarcerate, and then rapidly deport. It was a pre-ordained conclusion.

Well, that was until you stepped in.

A month ago, the ACLU of Oregon filed a lawsuit on behalf of the Innovation Law Lab and our client, Luis Javier Sanchez Gonzalez, in order for the Law Lab to obtain access to a single node in the apparatus of mass incarceration, the federal detention center in Sheridan, Oregon. Last week, the federal court granted a preliminary injunction securing our continued access. The Law Lab promised to represent everyone who needed and wanted a lawyer. Everyone.

And that simple promise broke the rapid deportation system in place at Sheridan. Although everyone was supposed to have been deported by now, every person represented by the Law Lab’s pro bono teams on the merits has won their fear claim. Everyone. And now it is time to get them out of detention and back with their families where they belong.

Since late June, more than 100 volunteers have:

  • Completed 101 legal screenings
  • Conducted 202 legal meetings
  • Defended clients at 85 credible fear interviews
  • Initiated release applications for every client
  • All of this in 9 languages
  • And WON every single fear claim. Every claim.

These men are still inside Sheridan. People who stood up for their beliefs, even when it put them in harm’s way. People who fled persecution from places like India, Nepal, Bangladesh, Guatemala, Honduras, El Salvador, and Mauritania. People seeking refuge from violent political battles playing out in different places in the world.

Today the first applications for release were filed. You can continue to support our efforts by making a gift, signing up to be part of the post-detention respite network, and joining public actions hosted by local advocacy organizations.

Thank you to the volunteers who have showed up in Sheridan and given their all and to the community members who have joined in marches and vigils, assuring the voices from Sheridan are heard. And special thanks to our community organization partners: the ACLU of Oregon, AILA, APANO, Causa, IMIrJ, and Unidos Bridging Community.

The Trump Administration sent immigrants to Sheridan in an attempt to deport them, to shut them off from legal counsel and the outside world. But because of YOU we have been able to alter the course of mass deportation in Sheridan, Oregon.

Sincerely,

The Innovation Law Lab Team

Legal access to continue in Sheridan

Today marks a crucial legal victory for Innovation Law Lab, as Judge Michael H. Simon granted our motion for a preliminary injunction, ensuring our clients detained in Sheridan continue to have access to legal counsel.

At the time of today’s hearing, 74 out of the 80 clients represented by the Innovation Law Lab had received positive determinations in their credible fear interviews. One client opted to forego his interview and return to his country of origin. Five decisions, for interviews that occured late last week, had yet to be issued.

The judge’s initial temporary restraining order undoubtedly had an effect on the efficacy of the credible fear process. Prior to his June 25 order, Innovation Law Lab attorneys, staff, and volunteers had been turned away from the facility numerous times, despite attempts to schedule visits with Bureau of Prisons and Immigration & Customs Enforcement staff ahead of time.

Once the court mandated access, the Innovation Law Lab quickly mobilized to provide “Know Your Rights” presentations to the majority of those detained, conduct over 100 screening interviews, hold over 150 additional one-on-one meetings, and enter into pro bono representation agreements with 80 individuals.

As the order expired this month, the Innovation Law Lab and our counsel, the ACLU of Oregon and Stoll Berne, made the decision to move forward in seeking a preliminary injunction. The preliminary injunction assures that our attorneys and volunteers will continue to have regular access to meet with our clients in Sheridan, and assure that clients are not transferred to other facilities without our prior consent.

While the credible fear interview positive determinations mark a key step forward in our clients’  cases, there is still more work for attorneys, interpreters, and legal assistants to do. Ultimately, this preliminary injunction will allow us to move forward unimpeded with the important work of securing release for the immigrants being detained in Sheridan.

Belong: A Comprehensive Report on Inclusion & ORS 181A in Oregon

Today, the Innovation Law Lab released a comprehensive report on inclusion and Oregon’s statute, ORS 181A.

From its inception as a state, Oregon has struggled with exclusionary policies against immigrants and communities of color. In 1977, the unlawful and discriminatory interrogation of long-time Oregon resident Delmiro Trevino led to a lawsuit and culminated in the legislation known today as ORS 181A.820. Though overlooked and underenforced for many years, this “sanctuary” statute is an important and powerful tool in the effort to build a more inclusive Oregon by combating unlawful and discriminatory practices through the disentanglement of state and local police from federal immigration enforcement.

As President Trump’s administration advances a corrosive and divisive deportation policy, ORS 181A.820 is a crucial component of Oregon’s efforts to advance racial and cultural inclusion.

  • By building trust across communities, ORS 181A .820 helps local law enforcement keep Oregon safe . Law enforcement agencies in Oregon and across the country support disentan- glement policies because they empower state and local police to focus their limited resources on key public safety objectives: preventing, investigating, and punishing crime. Disentangle- ment policies also improve public safety and effective policing by building trust and encourag- ing crime reporting at a community level.
  • By protecting diverse communities from rights violations, ORS 181A .820 strengthens the rule of law. Oregon’s disentanglement policy is grounded in state powers enshrined by the Tenth Amendment of the United States Constitution. Disentanglement strengthens the rule of law by preventing the illegal and selective administration of federal civil immigration law by state and local officials untrained in immigration proceedings. This clear separation of roles reduces the risk of racial discrimination, profiling, harassment, and other rights violations by Oregon law enforcement agencies. It also promotes the uniform application of immigration law and protects Oregon localities from liability.
  • By furthering inclusion, ORS 181A .820 improves Oregonians’ collective prosperity . Powerful empirical evidence shows that disentanglement policies not only improve community safety and the rule of law but also enhance civic engagement and raise the level of collective prosperity. These benefits are particularly strong in Oregon, where immigrants are an integral part of the state’s social fabric, history, and economy.

In contrast to the collective benefits of disentanglement, the Trump administration’s racialized agenda of immigration detention and deportation threatens to divide and destabilize Oregon communities. Looking ahead, it is critical that Oregon acts to fortify and expand its inclusionary practices and policies.

Read the report here.

Important victory in court

On Monday, June 25, a federal judge granted emergency relief to allow pro bono attorneys to provide legal counsel to the 121 individuals detained in Sheridan, Oregon.

This ruling was the result of a lawsuit brought by the ACLU of Oregon and Stoll Berne on behalf of the Innovation Law Lab and Luis Javier Sanchez Gonzalez, one of the individuals detained at the federal prison in Sheridan. The suit was brought after repeated denials by ICE and the Bureau of Prisons to allow pro bono attorneys and legal assistants with the Innovation Law Lab meet with individuals in detention and provide Know Your Rights presentations.

Luis Javier, an asylum seeker who was separated from his partner, his five-year-old son, and 18-month-old daughter upon arriving in the United States, has spent nearly a month at FCI Sheridan. When given the opportunity to call his family for a three-minute call, he took the opportunity to ask for a lawyer.

For individuals seeking asylum, access to counsel can be the difference between life and death. And in the era of family separation, counsel can be critical to facilitating the reunification of families fractured at the border.

To read the full lawsuit, follow this link.

Legal Teams Again Denied Access to Immigrants at Sheridan Prison

SHERIDAN, Ore. – The American Civil Liberties Union of Oregon and Innovation Law Lab said today that pro bono legal teams were again denied access to the federal prison in Sheridan where 121 asylum seekers are currently being detained by Immigration and Customs Enforcement (ICE). The groups wrote a letter to ICE earlier this week demanding access to the detainees.

“I am shocked that our legal teams were turned away again,” said Mat dos Santos. “Local ICE officials keep telling us we can meet with the detainees, but when we go to the prison we are turned away. This is unacceptable.”

The groups said that they notified ICE last night that they would send a team today to visit four detainees who have requested legal representation. This afternoon, the first legal team was turned away at the gate during the visiting hours and denied access to the detainees. Another pro bono legal team was scheduled to give a “Know Your Rights” presentation to some of the detainees this evening, but they were also turned away at the gate. A group of six clergy and faith leaders were also turned away from entering the prison today.

Dos Santos said he is also disturbed by reports of conditions at the prison including detainees being confined to their cells over 22 hours per day as well as a scabies outbreak.

“The men who are being detained by ICE at Sheridan prison are suffering,” said Mat dos Santos, legal director at the ACLU of Oregon. “We will not stop fighting to get pro bono attorneys in to meet with the detained men. Sheridan clearly is ill-equipped to house immigrant detainees and the local ICE staff seems to be in way over their heads.”

The asylum seekers were sent to Oregon during the unprecedented move of 1,600 ICE detainees to federal prisons in five states earlier this month. The ACLU of Oregon submitted a FOIA request this week seeking information on the decision to move the people now at the federal prison in Sheridan and any policies or guidelines for handling the detention of immigrants there. They are also seeking information about whether detainees are being allowed to locate and contact their missing family members.

The 121 detained men are from 16 countries and speak 13 languages. Advocates believe that they have been in detention since mid-May after being detained while seeking asylum at southern border.

This post was originally published by the ACLU of Oregon here.

Immigration experts and elected officials call for justice for immigrants detained at FCI Sheridan

The federal government continues to restrict access to Oregon attorneys offering to provide pro bono legal counsel to the immigrants detained at FCI Sheridan.

On Sunday, June 17, Senator Ron Wyden met with a group of Oregon immigration experts advocating for the rights of the men at FCI Sheridan. Experts included Stephen Manning and Ian Philabaum of the Innovation Law Lab, Mat Dos Santos of the ACLU of Oregon, and Chanpone Sinlapasai and Luis Garcia of the law firm of Marandas Sinlapasai.

In a press conference following the meeting, Stephen Manning acknowledged the outpouring of support from the Oregon community: “Within days of the announcement that there were going to be asylum-seeking men held at [the Sheridan] facility, more than 300 Oregonians have already stepped up. We will be able to provide free lawyers for every person that is detained in that facility.”

The challenge that remains is connecting immigrants at FCI Sheridan with pro bono attorneys. Currently, there is no way for individuals in detention to make a phone call to an attorney and attorneys wishing to visit potential clients have been turned away. Stephen explained, “We need the government to meet us halfway and provide the constitutional baseline of access.”

Luis Garcia, who visited FCI Sheridan last week at the invitation of the Mexican Consulate, noted that some of the men had been separated from their children. “As a new father, it is extremely difficult for me to drop my child off at daycare. I cannot imagine what these individuals are going through where they haven’t seen their relatives or children for over two months.”

Luis further added, “Our government is accomplishing what cartels and gang members were not able to do, and it is destroying families and separating them.”

This meeting comes a day after Senators Ron Wyden, Jeff Merkley and Representatives Suzanne Bonamici and Earl Blumenauer toured FCI Sheridan. Elected officials learned there are 16 countries and 13 languages represented at FCI Sheridan.

Watch the entire press conference here.

Please direct any inquiries to Victoria Bejarano Muirhead at victoria@innovationlawlab.org.

Asylum Seekers Denied Access to Lawyers at Federal Prison in Oregon

One hundred and twenty three asylum seekers are being held by Immigration and Customs Enforcement (ICE) at a federal prison in Oregon without meaningful access to attorneys in violation of the U.S. Constitution, federal immigration laws, and international treaties said lawyers for the American Civil Liberties Union Foundation of Oregon (ACLU of Oregon) and Innovation Law Lab. The groups today sent a letter to ICE outlining their concerns for the detainees’ rights. The Oregon detainees, all men, are among the 1,600 immigrants marked for expedited deportation that the Trump administration sent to federal prisons in five states in an unprecedented move last week.

“Detention should never be used to punish or deter a person from applying for asylum to save his life,” said Stephen Manning, immigration attorney and executive director of Innovation Law Lab. “It is a core principle of the United States that no person in this country should be imprisoned without due process of law.”

In the letter, the groups say that while the courts decide the fate of these men’s asylum claims, ICE must ensure that the federal prison at the very least complies with the current civil detention standards.

Last week, lawyers with Innovation Law Lab and the American Immigration Lawyers Association Oregon Chapter sent a letter to the prison warden offering pro bono lawyers for the detainees. The volunteer lawyers were able to meet with some detainees yesterday, but were not allowed to see detainees this morning and have been denied access through the weekend.

The groups say the detainees being held in Oregon are men from different countries around the world including India, Pakistan, China, Nepal, Ukraine, Guatemala, and Mexico. Many of the detainees applied for asylum at points of entry along the southern border of the U.S. Some of the men reported being forcibly separated from their partners and children and lack information about their family members’ whereabouts.

“There should be no deportations until all one hundred and twenty three men have meaningful access to lawyers,” said Mat dos Santos, legal director of the ACLU of Oregon. “These men  presented themselves to request asylum as allowed under U.S. laws and international agreements. They are fleeing violence and persecution in their home countries and they deserve their day in court.”

Dos Santos explained that it will take weeks for each detainee to meet with an attorney for an initial assessment because the federal prison only has four meeting rooms and offers extremely limited visiting hours. The detainees also cannot call lawyers and the prison’s video teleconferencing system is broken.

“People come to the United States at great personal risk seeking freedom from despots and cruelty at the hands of their government,” dos Santos said. “We cannot meet them at our borders with more of what they have fought so desperately to escape.”

A vigil is planned outside the prison on Monday, June 18 at 5:30 p.m. Details about the event are online.

The letter to ICE is online at https://aclu-or.org/sites/default/files/field_documents/lt_t_homan_6.15.18.pdf.

The letter to the warden is online at https://innovationlawlab.org/wp-content/uploads/2018/06/Sheridan-Letter.pdf.

This release is online at https://aclu-or.org/en/press-releases/asylum-seekers-denied-access-lawyers-federal-prison-oregon

Please direct inquiries to Sarah Armstrong of the ACLU of Oregon at 503.756.3147.

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